A Tale of Two Half-Centuries

A while ago I categorised the referendums at the federal level to see what voters were rejecting. It turns out it was centralisation; or the constitutional increase of power to the Commonwealth Government. Of the twenty-seven referendums for increased centralisation only three have passed. If these referendums are split between 1901-1951 and 1952-2006 a further imbalance appears.

In the failed referendums of the first half-century were three to give the Commonwealth control of industrial relations beyond s51xxxv. Those referendums are mentioned in the recent High Court case which the majority rejected as having effect on the final decision even though the dissent believed those failed referendums should have been taken into account.

The ratio of referendums put forward in the second half of the twentieth century is pretty low, and the failure rate is 100%. This suggests that the federal government has found different means to centralise power and the recent case on Workchoices is one example of this. The High Court has been highly accommodating to increases of constitutional power at the national level in the last fifty years making referendums less necessary in this area.

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SJ
SJ
15 years ago

Ken Says: “The High Court has been highly accommodating to increases of constitutional power at the national level in the last fifty years making referendums less necessary in this area.”

Is this true? What about The Incorporation Case (1990) and Re Wakim (1999)? It seems to me that in these cases the High Court was not being accommodating at all, even where there were “workarounds” agreed between the commonwealth and the states.

Please note that I’m no expert in this area, I’m just asking the question.

Ken Parish
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Ken Parish(@ken-parish)
15 years ago

SJ

The post is by Cam not Ken. I agree that the statement is to an extent an oversimplification, and the two cases you mention are examples that certainly didn’t enhance federal power. There are other such examples, including numerous cases on the trde and commerce power where Australia’s High Court hasn’t been anywhere near as centralist as the US Supreme Court (despite the fact that our provision is essentially identical to the US one). Nevertheless, Cam is certainly right that the general trend has been decisively centralist since 1920, and the Work Choices decision is another one in that line.

SJ
SJ
15 years ago

Sorry, Ken. I misread that badly.

Apologies to you, too, Cam.

cam
cam
15 years ago

SJ, No worries, I was trying to make the point that the High Court is accommodating enough that in most cases Parliament doesn’t have to bother with referendums anymore to get what it wants.